STATE OF LOUISIANA Vs. LARRY LEGANIA
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA * VERSUS NO. 2011-K-1618 * COURT OF APPEAL LARRY LEGANIA * FOURTH CIRCUIT * STATE OF LOUISIANA ******* ON APPLICATION FOR WRITS DIRECTED TO CRIMINAL DISTRICT COURT ORLEANS PARISH NO. 404-717, SECTION “I” Honorable Karen K. Herman, Judge ****** Judge Rosemary Ledet ****** (Court composed of Judge James F. McKay, III, Judge Terri F. Love, Judge Rosemary Ledet) (ON APPLICATION FOR REHEARING) Leon A. Cannizzaro, Jr. District Attorney Kyle M. Daly, Jr. Assistant District Attorney 619 South White Street New Orleans, LA 70119 COUNSEL FOR THE STATE Rachel Yazbeck 938 Lafayette Street, Ste. 240 New Orleans, LA 70113 COUNSEL FOR LARRY LEGANIA CLARIFIED, AFFIRMED, AND REMANDED ON REHEARING APRIL 25, 2012 In his rehearing application, Mr. Legania requests that we reconsider our decision granting the State’s writ application and reversing the trial court’s ruling granting his application for post-conviction relief. He also requests that we address his alibi witnesses claim, which he raised in his supplemental application for postconviction relief. Although we decline both of his requests, we grant his rehearing application for the limited purpose of clarifying our original decision and remanding for a hearing on his alibi witnesses claim. In our prior decision, we noted the trial court failed to address the claims that Mr. Legania raised in his supplemental application for post-conviction relief. One of those claims was that “trial counsel did not call alibi witnesses whose names Mr. Legania gave her.” State v. Legania, 11-1618, p. 4, n. 2 (La. App. 4 Cir. 3/16/12). Because the trial court failed to reach the alibi witnesses claim, this claim was not before us. Our prior decision was limited to Mr. Legania’s claim on which the trial court based its decision: that “trial counsel should have investigated further and 1 found [two impeachment witnesses:] Ms. Steadman and Officer Butler.” The relevance of these witnesses was that if they had testified at trial they would have provided a basis for Mr. Legania’s defense that the victim had a motive to frame him because he was a threat to the victim’s drug sales. The trial court found merit to Mr. Legania’s claim of ineffective assistance of counsel based on the failure to investigate and find these two impeachment witnesses. On this basis, the trial court granted his application for post-conviction relief. Reversing, we reasoned that even assuming trial counsel should have investigated and found these two witnesses, Mr. Legania failed to show prejudice from this failure. We further reasoned that “[e]ven if Mr. Legania was able to show that he and the victim had a dispute over the victim’s drug dealings, this fact would not have proven that he did not rob the victim.” As noted at the outset, we affirm our decision reversing the trial court’s ruling granting Mr. Legania’s application for post-conviction relief on this basis. Nonetheless, we find it appropriate to remand this case to the trial court for a hearing on Mr. Legania’s alibi witnesses claim, which has not been addressed. On remand, the trial court is instructed to consider Mr. Legania’s claim that trial counsel’s failure to call alibi witnesses—especially his grandmother, Marcia Mitchell—constituted ineffective assistance of counsel. CLARIFIED, AFFIRMED, AND REMANDED ON REHEARING 2
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